By Jack Greiner
A young African American man named John Crawford was shot and killed recently in a Beaver Creek Ohio Walmart. The shooter was a Beaver Creek police officer. The events leading up to the shooting and the shooting itself was captured on Walmart surveillance video. That video runs continuously throughout the day and night.

Walmart turned the video over to authorities, and it’s now in the hands of the Ohio Bureau of Criminal Investigation, an arm of the Ohio Attorney General, Mike DeWine. In Ohio, a record maintained by a public office is a public record. The Walmart surveillance video fits that description. And it’s supposed to be produced on request of any member of the public.

But despite multiple requests by Mr. Crawford’s family and others, the BCI won’t release it.

Why? The BCI claims that since the video is now part of a criminal investigation, they don’t have to produce it. They say it’s exempt from production, along with every other scrap of paper in the BCI file because it’s exempt under the Confidential Law Enforcement Investigatory Record (“CLEIR”) exception. But with all due respect, they are wrong.

The CLEIR exception permits law enforcement to withhold a limited number of records under limited circumstances. Which means that just saying “it’s part of an investigation” doesn’t cut it. The record has to be part of an investigation, but it also has to disclose the identity of a confidential source, reveal a confidential investigatory techniques, uncover an uncharged suspect or pose a risk of harm to someone by virtue of the release. And even if one of those factors apply, the record still needs to be released with the confidential information redacted. Here’s a brief we field recently in a similar case with BCI that discusses the law in more detail.

And one more thing. Routine incident reports and 911 calls aren’t part of the investigation and aren’t subject to the CLEIR exception. The reason? Those reports kick off the investigation, but they’re not part of the investigation. SO a routine surveillance camera that runs 24/7 and happens to catch a shooting in my mind is an incident report. So the CLEIR exception doesn’t apply. And the BCI’s heavy handed approach in these matters is completely off base.